Hon’ble Mr. Ajeya Matilal, Presiding Member

          This case relates to an application         u/s 12/13 & 14 of Consumer Protection Act, 1986 valued at Rs.37,48,862.74/- out of which Rs.25,00000/- is flat value and Rs.12,48,862.74 for other reliefs.

        The case of Complainants is in short like that the OP Nos.1 to 3 are developers by strength of development agreement dated 30.10.2009. One Bibhuti Bhusan Saha was the absolute owner of the property and transferred the same by a Registered Sale Deed in the year 1959 in favour of Smt. Rekha Rani Sarkar and the said Rekha Rani Sarkar died intestate and her property devolved upon her legal heirs Sri Pranab Kumar Sarkar, Sri Nilu Sarkar and Smt. Mala Das being Opposite Party Nos. 5 to 7. Malati Devi transferred 2 Kottahs and 1 chittack 44 sq. ft. of land by a Sale Deed in the year 1948 in favour of Bankim Behari Ghosh. Bankim Behari Ghosh died intestate and he purchased property devolved upon his legal heirs (sons) namely, Aloke Kumar Ghosh and Swapan Ghosh i.e. the Opposite Party Nos.8 & 9. The OP Nos. 4 to 5 are the owners and a registered Power of Attorney was executed by the owners in favour of the OP No. 2 on 30.11.2009. They entered into an Agreement for Sale with the Complainant on 19.12.2015 in respect of selling a self-contained flat being flat No. A on the 4^th floor on the north-west side measuring about super built-up area of 1150 sq.ft. more or less with proportionate area of land  for lift, staircase, lobby, water tank etc. for a total consideration of Rs.25 Lakhs at R.S Plot No.2051, Khatian No.00011 under Dum Dum P.S. As per Agreement for Sale dated 19.12.2015, the construction of the said flat of building was agreed to be completed within December 2015 and it was also stipulated that the developer shall deliver the possession to the Complainants within the said period. The Complainants paid total consideration money of Rs.25 Lakhs as per agreement and further amount of Rs.7000/- only on account of installation of electrical connection. The OP Nos. 1 to 3/developers deliberately failed to do so within time. Ultimately the OP Nos. 1 to 3/the developers handed over the possession of the schedule B flat on 12.2.2016. The OP No, 1 to 3/Developers executed and registered a Deed of Conveyance in favour of the Complainants on 12.02.2016. Although in the agreement for sale, as well as, in the Deed of Conveyance and the site plan annexed to the deed, it was mentioned that the super built-up area of the flat would be 1150 sq.ft, but the complainant found that the measurement of the flat is much less and as such, the complainants since February 2016 requested the OP No. 2 and 3 developers to provide with the area mentioned in the measurement of the said flat with break-up as per clause 17 of the agreement and issued a letter on 21.7.2016. But the OP Nos.1 to 3/developers on different pretexts killed time and were inclined to provide with the same. The Complainants then finding no alternative took professional help of one Debabrata Ghosh of Ghosh Surveyors and Valuers Pvt. Ltd. and said engineer after proper measurement submitted his report on 29.9.2016, wherefrom it was found that the existing covered area of the flat No. 4A was 854.59 sq.ft and the super built-up area of the said flat as per clause 27 of the Agreement after computation became 1088.49 sq.ft. which was much less than, as agreed to be delivered by the developers.

          Therefore, OP Nos. 1 to 3 received excess payment for excess area of 615 sq.ft. from the Complainant. The Complainant No. 2 on 21.7.2016 wrote a letter to the Chairman, Dum Dum Municipality seeking information u/s 6 of Right to Information Act requesting the authority to provide with the information regarding the actual covered area declared by the developers in the final record concerned and also about the area of the flat assessed in the records in holding concerned.

          The Chairman, Dum Dum Municipality by its Memo No.382/DDM/Gen/16 dated 12.08.16 informed the complainant No. 2 that from the documents submitted by the developer at the time of issuance of Occupancy Certificate  in the name of the owners, it was informed by the developer that a flat having covered area of 942 sq.ft. was allotted in favour of complainants but from the prayer of mutation made by the complainants it appeared that the measurement of the flat was 1150 sq. ft., which was allotted in favour of the complainants and accordingly the assessment of tax was revised. So according to the Complainants the actual measurement of the B schedule flat was suppressed not only to the Complainants, but also to the Dum Dum Municipality which is a proof of unfair trade practice by the OP No. 1 to 3, being the developers.

          Accordingly, the Complainants from the date of entering into the Agreement for Sale i.e. on 19.12.2015 they were deliberately cheated and they duped the Complainants with falsehood. The Complainant paid an amount of Rs.2500000/- for occupying a flat of 1150 sq.ft.in the 4^th floor, but actually they were handed over1088.49 sq. ft. flat. The Developers received Rs.7000/- on account of electric connection, but surprisingly the OP No. 1 to 3, the developers deposited only Rs.2420/- as per N.A. Bill No. 5/00916/16/1/1 for such electric connection. So the OP No.1, Developers received excess amount of Rs.4580/- from the Complainants on account of electric connection.

          The complainant then through his advocate Sri Pratap Kumar Ghosh sent a notice on 09.03.2017 asking the OP No. 2 to make physical measurement of B schedule flat and refund the excess amount to the Complainants within 15 days from the receipt of notice.

          In spite of receiving the same, the developers did not comply with the same. They did not reply to such letter till the date of lodging of the Complaints. According to the complainants, there is deficiency in service on the part of OPs.  According to them, the cause of action of the case arose on 19.12.2015, thereafter on 9.3.2017 when the OP No. 2 finally refused to discharge their responsibilities in terms of the agreement.

          So, the complainant filed the instant case praying for direction upon OP No. 1 to 3 for making joint measurement of the B schedule flat, refund of the excess amount of Rs.1,33,722.74 only taken from the Complainants in respect of excess area of 60.51 sq.ft @ Rs.2174/- per sq.ft. with 15% interest from 12.12.2016 till realisation. The complainant prayed for direction upon the OP1 to 3 for refund of excess amount of Rs.4850/- only in respect of excess amount paid on account of electric meter installation with 15% interest from 12.02.2016 till realisation. The complainant also prayed for direction upon the OP No. 1 to 3 for refunding the amount of Rs.10560/- on account of excess amount incurred by the complainant on account of stamp duty and Registration Fees for 61.51.sq.ft. with an interest @15% per annum. The Complainants also prayed for compensation of Rs.5,00,000/- for their physical and mental harassment. They also prayed for litigation cost of Rs.1,00,000/-. The Complainants also prayed for direction upon OP for payment of Rs.5,00,000/- for deficiency, negligence of service and unfair trade practice.

          The OP Nos. 1, 2 & 3 contested the case by filing written version denying the material allegations of the Complainants along with the technical pleas. According to them, the OPs were promoters and developers engaged in promoting and developing land for the purpose of providing residential flats to the customers / intending purchasers. It is stated by the OP Nos.1 to 3 in their BNA that the OP Nos. 2 to 7 are the owners of all that piece and parcel of bastu land measuring 5 cottahs, 5 chittacks 265/8 sq.ft. in CS Dag No. 2051 under Mouza Dum Dum Cantonment, P.S. Dum Dum within Dum Dum Municipality in Holding No.8/1/1, &6, C/A & 6/B and Ward No.9 at Harshanath Mukherjee Road, Kolkata-700027.  The OP Nos. 2 to 7 entered into a development agreement with the OP No.1 to 3 on 30.10.2019 under certain terms and conditions and by the strength of the same the OP No. 1 to 3 were authorised to construct and sell a multi-storied residential–cum–commercial building on the property to the intending purchasers. The OP Nos. 2 to 7 appointed the OP No. 2 as their constituted attorney and executed a registered Power of Attorney in favour of one of the Directors of the OP No.1, namely Bijoy Kumar Saha on 30.11.2009 vide Deed No.820 for the year 2009 to exercise all such powers embodied therein. After being satisfied with the relevant papers of the building and sanctioned plan the Complainants expressed their desire to purchase a complete flat. So they entered into an Agreement for Sale on 28.8.2012 in respect of a self contained flat being flat No. A on the 4^th floor measuring super built up area of 1150 sq.ft with proportionate share of interest in the lift room, stair case etc. which was more fully described in B schedule for consideration of Rs.25 Lakhs. One Gouranga Palit, called the OP No. 2 after 7 days requested him to show the measurement of the said flat. It was measured in the following manner :

          Covered Area              :         870 sq.ft.

          Proportionate share     :           97 sq.ft.

          Lift stair Gr. Enrance   :         _________

          Lift Room                     :        967 sq.ft.

          20% super built-up

          Area                              :         193 sq.ft.

          Total                              :       1160 sq. ft.

          The proportionate share

          Stair Lift Gr. Entrance   :       1273 sq.ft.

           Lift  Room.

           Total built-up area        :        10835 sq. ft.

           Gauranga Palit Share    :     1273*870/10.835=97.24sq.ft.

          After accepting the measurement and cost of flat the Complainant paid Ra.50,000/- as token money to the OP by A/c payee cheque in favour of the OP drawn on HDFC Bank, Dum Dum Cantonment Branch on 14.12.2015, which was credited.  The agreement done on 19.12.2015 was signed by the OP No.2 in presence of two witnesses. The Complainant is to pay the balance amount of 28,50,000/- within 15.1.2016 but he could not complete such payment within 31.01.2016.

          As per agreement at page no.16, the balance payment was Rs.22,50,000/- payable within 15.01.2016. But he did not pay the said balance amount within time i.e. 31.01.2016. OP No. 2 called him several times but the Complainant disconnected the calls of the OP No.2. As per agreement, the OP No.2 installed a grill covering the balcony for cost of Rs.7,000/-. But the said Gouranga Palit did not pay the cost. Sri Gouranga Palit made some changes in the kitchen room. The OP No.2 paid the cost and he changed the electric point of line and the OP No. 2 would have to bear the cost. It is also stated that OP Nos. 1 to 3, in pursuance of the plan, became entitled to undertake the construction of erection and completion of a multi-storied building comprising various self contained flats.  According to the OPs, they were ready and willing to execute a Deed of Conveyance in favour of the Complainants and the OP requested the Complainant so that the Deed of Conveyance may be executed and registered in the name of Complainants.  According to them, no money was taken for extra work and the Complainants are not at all consumers under the Consumer Protection Act 1986. The OPs are not service provider. The OPs prayed for dismissal of the case. The OP Nos. 4 to 7 did not contest the case. So, the case proceeded ex-parte against them.

          For proper adjudication of the disputes following points are framed:-

1. Whether the complainants are consumers?
2. Whether there was any cause of action to file the case?
3. Whether there was any deficiency in service on the part of OP Nos.1, 2 & 3?
4. Whether there was any unfair trade practice on the part of OP nos. 1, 2 & 3?
5. Whet her the complainant is entitled to get relief as prayed for?

          Decisions with reasons:-

          Parties adduced their evidences by way of affidavit. They were coss-examined by their adversaries by putting questionnaires. They replied to such questionnaires. It appears from the Deed of Conveyance dt.12.02.2016 that the super built-up area of the flat was 1150 sq.ft. and the purchasers were Mrs. Moitreyee Chatterjee alias Moitreyee Palit and Mr. Gouranga Palit and the name of developer is Bijoy Kumar Saha and total market value was Rs.27,80,700/-, stamp duty payable was Rs.1,66,886/- and registration fee payable was Rs.30,594/- and amount of stamp duty to be paid by non-judicial stamp was Rs.5000/-. It appears from the letter of the Chairman, Dum Dum Municipality dt. 12.08.2016 in response to an RTI Application that the flat having covered area of 942 sq. ft was allotted to Gouranga Palit on the 4^th floor at holding no.6, Harshanath Mukherjee Road, Kolkata – 700028. The flat was mutated in the name of the owners. An LBS was appointed on the behest of the Complainant earlier.

         The Ld. Advocate or the Complainant submitted that there was a shortfall of area of 61.51 sq. ft. So, the complainant prayed for refund of consideration @ Rs.2174/- per sq. ft for 61.51sq. ft. extra area with an interest @15% per annum from 12.02.2016 till realisation. The Complainants also prayed for refund of Rs.4580/- only taken from the Complainants being an amount deposited by the Complainants for installation of electric meter with 15% interest until realisation, but we do not find any document to ascertain that the Complainants paid the installation charge to the authority concerned. At page 75 of the complaint petition we find a letter issued by Ld. Advocate for the Complainant dt. 09.04.2017 to one Bijoy Kumar Saha, Director of M/s. B.A. Housing Complex Company Pvt. Ltd. asking him to make arrangement for physical measurement. Our attention was also drawn to the reply of the chairman Dum Dum Municipality to the letter of one Gouranga Palit  (page 72 of the complaint), wherefrom it appears that the flat in question had covered area of 942 sq.ft., but as per Deed of Conveyance and Mutation record, Gouranga Palit purchased a schedule flat having covered area of 1150 sq.ft. As per prayer of the Complainants one Mihir Kumar Banerjee was appointed Engineer Commissioner. It appears from his report that there was a shortfall area of 36 sq. ft.

       The OPs filed written objection against the same. The OP Nos.1, 2 & 3 filed questionnaire against the report of the Ld. Commissioner, but unfortunately the Ld.  Engineer Commissioner expired. So, the OPs did not get any opportunity to cross-examine him. Furthermore, none of the parties made any prayer for appointment any other Engineer Commissioner. So under these circumstance, we have no other alternative but to accept the report submitted by the Ld. Commissioner. It appears from the report of the Ld. Engineer Commissioner that there was a shortfall of area of 36 sq.ft.

          The Ld. Advocate for the contesting OPs submitted that in the petition of the complainant, the Complainant did not make any prayer for refund of the excess amount for shortfall area of 36 sq.ft.

He only made prayer for compensation for shortfall area of 61.51sq.ft. @ Rs.2174/- per sq.ft. So, as the Complainant did not pray for compensation for shortfall area of 36 sq.ft., this prayer cannot be entertained.

          But we are not convinced with the aforesaid argument. However, it is apparent from the discussion that there is a shortfall area of 36 sq.ft., if the compensation @ Rs.2174/- per sq.ft. is awarded the amount shall become Rs.78,264/-.  We are of the view, the aforesaid amount shall be awarded from the date of execution of the Deed of Conveyance on 12.02.2016 and an interest @9% per annum should be awarded from that day till realisation of the entire amount.

           As there was a shortfall area, so, it can be concluded that there was unfair trade practice on behalf of the OP Nos. 1, 2 & 3. So, the Complainants are consumers, they have cause of action to file the case and obviously there is deficiency in service as we have discussed earlier and the Complainants are entitled to relief as prayed for.

            All the points are decided accordingly in favour of the Complainants.

            Hence, it is

Ordered

         The Consumer Complaint Case No. CC/493/2017 is allowed on contest against the Opposite Party Nos. 1, 2 & 3 and ex-parte against the rest Opposite Parties with a litigation cost of Rs.10,000/- payable by the Opposite Party Nos. 1, 2 & 3 jointly and severally to the Complainants.                                                                                                                                                                                               

          The Opposite Party Nos. 1, 2 & 3 are jointly and severally directed to pay compensations to the Complainants of Rs.78,264/- along with an interest @ 9% per annum from 12.02.2016, the date of execution of Sale Deed within 60 days from the date of this Order, failing which it shall carry interest in the same rate till the date of realisation of the entire amount.

          The Complainants are at liberty to put the Order into execution after the stipulated period is over.